This article deals with the laws related to child custody in India. When parents get separated or divorced, children are the ones who are affected the most. It not only affects them mentally, but their future lifestyle is also affected. Indian courts, while dealing with the issues of custody of minor, has not been strict about following the specific provisions of the law. This leniency is allowed by the court to decide in the best interests of the minor. The welfare of the minor is superior to the rights of parents in such cases.

Different personal laws apply to minors of different religions, but Guardians and Wards Act, 1890, is applied to minors irrespective of their castes and faiths. Under some personal laws, specific laws are available to deal with the issue of custody. Under Hindu law, custody of minor is dealt with by Hindu Minority and Guardianship Act, 1956 and Hindu Marriage Act, 1955. Under Muslim Personal law, different provisions are available to deal with custody issues.

Under Christian and Parsi law, there is no specific personal law to deal with such matters. It is dealt with by the provisions of Guardians and Wards Act, 1890 and other statutes generally applicable to all religions, including the Indian Divorce Act, 1869.

The author also addresses the issue of conflict between Guardians and Wards Act, 1890 and personal laws. This article helps to understand how the courts make a harmonious interpretation of different statutes and laws to decide in the best interests of the minor.

Guardians And Wards Act, 1890

This Act applies to the minors of all castes and faiths.[1] Personal laws are not affected by this Act since the provisions under this Act applies after a person has been established as the guardian of the minor under the personal laws.[2]

This Act deals with the rights of a guardian to have custody of a ward.[3] For a person to successfully claim the custody under this Act, it must prove that he is the guardian of the minor.[4] If the person who is claiming the custody of the minor is not his guardian, then he must first apply to become a guardian and then claim for the custody.[5]

1. Difference between Custody and Guardianship

   Guardianship and custody are distinct from each other. Guardianship is associated with the rights of an adult person over another or the property of a minor, whereas, the concept of the custody is narrower than that of the guardianship.[6] It merely relates to taking care of the minor and his routine upbringing.[7]
   
   

2. Interim custody

   This Act deals with the powers of the court to make interim orders regarding temporary custody of the minor.[8] Courts are empowered to make orders for the interim custody of the minor till the court proceedings for the guardianship are going on. Madras HC gave the interim custody of the minor child to the grandmother till the pendency of the court proceedings.[9]
   
   This power to make temporary orders on the custody of minor under section 12 of Guardians and Wards Act, 1890, can also be applied while the proceedings under Section 25 of Guardians and Wards Act, 1890 are going on.[10]
   
   

3. Parens Patriae Jurisdiction and Welfare of Child

   While deciding on who should be given the custody of the child, paramount consideration should be given to the welfare of the child.[11] The welfare of the child is given more weightage as compared to the rights of the parents over the minor. The desire of the child, suitable environment, and capabilities of parents to take proper care of the minor's needs and requirements is what taken into account before making the decision.[12]
   
   If the child is above five years of age does not automatically get transferred the custody of the minor to his father.[13] Although, section 19(b) of Guardians and Wards act, 1890, and section 6 of Hindu Minority and Guardianship Act, 1956 father is considered as the natural guardian of the minor, court in such cases is not duty-bound to give custody to his father. In such cases, court will consider the welfare of the child in the first place and will decide accordingly.[14] Supreme Court has held that provisions under section 6 of Hindu Minority and Guardianship Act, 1956 cannot supersede the overriding attention given to the welfare of the child.[15] In this case, custody of the minor was given to the mother instead of the father and held that the welfare of the child should be given paramount importance.
   
   Section 13 Hindu Minority and Guardianship Act, 1956 states that for getting the guardianship of a minor person must prove that it will be in the best interests of the child.[16] This section of the Act overrides any provision of the same Act or any other act.[17] While considering the special provisions governing the rights of parents in the legislative acts, courts can take parens patriae jurisdiction to decide in favour of the minor's welfare.[18]
   
   In Jijabai v. Pathankan[19], the court refused to grant the custody of the child to his father since he has not taken care of the child for a long period of time. Court, while taking into consideration the welfare of the child, gave the custody of the child to his mother.
   
   
4. Factors to be Considered in Welfare of the Child
   This Act lays down the factors which should be taken into account while determining the welfare of the child. Section 17(2) states that 'the court shall have regard to the age, sex, and religion of the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian of the proposed guardian with the minor or his property.'[20]
   

   1. Age of the child

      Age of the child is an aspect that should be taken into count while deciding the custody issues. Courts usually consider giving the custody of a child of tender age to the mother, for she is better suited to take care during these years. The Supreme Court observed that it is not binding for the courts to give the custody of the child of tender age to his mother if it is shown that it would not be in the welfare of the child.[21]
      
      

   2. Sex of the child

      Guardians and Wards Act, 1890 states sex as one of the aspects of determining the welfare of the child. But no provision in the law bounds the courts to give the custody of a female minor to only a female guardian.[22] It is the welfare of the child that will be given prominence. In Jitender Arora v. Sukriti Arora[23], the court granted the custody of a minor girl of 15 years old to her father since it was her preference to live with her father, and the court found the same to be in her best interests.
      
      In the case law, custody of a minor child was given to the maternal uncle.[24] Any person can be granted the custody of a female child if the court is satisfied that it will be in the best interests of the child.[25]
      
      

   3. Religion

      Hindu Minority and Guardianship Act, 1956 states that 'a person would not be allowed to act as a guardian of the child if he has ceased to be a Hindu.' This provision can be overruled with the help of Section 13 of the Hindu Minority and Guardianship Act, 1956. It states that the welfare of the child is to be given paramount consideration, and this provision of the Act will supersede any law of this Act or of any other statute.[26]
      
      

   4. Characteristics of the persons

      Characteristics of the persons also play a significant role in deciding the custody and guardianship of the minor. In a case, the court found the mother's behaviour was not sound enough to give the custody of the child. Custody was given to the grandmother since she was found more capable of providing a proper home to the minor as compared to her mother.
      
      

   5. Preference of the deceased parent

      Preference of the deceased parent of the minor is also to be taken into consideration, but it will not be the sole criterion for the decision.[27] Paramount consideration will be given to the welfare of the child.[28]
      
      

   6. Prior or present relationship

      Prior or present relationship of the person seeking guardianship and custody with the child is also determining factor in custody cases.[29] The court gave the custody of a minor to his aunt, who was in good terms with the minor, and the mother was denied the custody since she has not shown any interest in the welfare of the child.[30]
   
   

5. Preference of the Child

   Courts, while deciding about the guardianship of the minor, must consider the minor's preference if he is ready to make an abled decision.[31] As per Indian law, the age at which the child is capable of making a matured decision depends on case to case.[32] While ascertaining the capability of the child to make abled decisions, the age of the child is not of much importance.[33] Court has to consider the mental development of the child in order to ascertain whether he is capable of making an intelligent decision. In a case law[34], the court took into account the opinion of a fourteen-year-old girl while deciding on the matter of guardianship.
   
   Preference of the child is to given consideration, but it will not be bounding on the court.[35] Custody of the child can be given against his wishes if, in doing so, the court finds it in the greater interests of the child.[36]
   
   Nil Ratan Kundu & Anr v. Abhijit Kundu[37] court held that though the final judgement lies with the court, preference of the minor child should be taken into consideration if he is mature enough to form s rational judgement. Preference of the child helps in deciding in the welfare of the child.

Hindu Law

Custody of child under Hindu law is dealt with the following statutes:

1. Hindu Minority and Guardianship Act, 1956
2. Hindu Marriage Act, 1955

A. Hindu Minority and Guardianship Act,1956
This Act is in addition to the existing Guardians and Wards Act, 1890, and it does not override the provisions of the current Act except expressly stated. Thereby, both of these acts need to be taken into consideration while deciding the custody of the child.

1. Father as the Natural Guardian of the Minor children
   This Act gives father the absolute right over the custody of minor during his lifetime. As per this Act, he is the natural guardian of the minor.[38] Court held that father has absolute right over his children, and this right cannot be altered even if the child has remained in custody of a third person for a long duration of time. Although this Act states father as the natural guardian of the child, it can not override the welfare of the child, which will be given paramount importance while deciding on the issues of guardianship and custody. At many instances, courts have disregarded this position of law and have given the custody of the child to the mother in consideration of the better interests and welfare of the child.
   
   
2. Custody of child of Tender Age[39]
   Section 6(a) states that the mother is the natural guardian and caretaker of the child after his father's death. It further states that until the child is under the age of five, custody of the child shall ordinarily remain with the mother. Although the father is the natural guardian, the mother is a suitable person for taking proper care of the child of tender age, and this provision is considered mandatory.[40] It was stated in Saraswathibai v. Sripad[41] that If mother is a suitable person to take charge of the child, it is quite impossible to find an adequate substitute for her. Courts give paramount importance to the welfare of the child while deciding on the matter of custody, and it is ordinarily established that for a tender aged child, the mother is the most suitable person to be given custody.[42]
   
   Roxann Sharma v. Arun Sharma[43], dealt with the issue of custody of a child aged less than five years. Court held that the custody of a child aged less than five years should usually be given to the mother unless the father proves that it would not be in the welfare of the child. This burden of proving mother as not fit for the custody of the child remains with the father. Court is not bound to give the custody of a child of less than five years to the mother if it is proven that doing so would not be in the interests of the child.
   
   
3. Custody of Child to Third Party
   Custody of a child can be handed over to third parties other than the parents of the child.[44] In a case, the Supreme court gave custody of the children to their maternal uncle. The mother of the children died, and they were not willing to go with their father since they were not happy with the ill-treatment that their father has given to the mother. The court, in this case, held that it would be in the best interest of the children that their custody is given to the maternal uncle with whom children are willing to go. Courts can decide to give the custody of the minor to a third party instead of giving it to the parents if the court is satisfied that doing so will be in the best interest of the child.

Muslim Law

Muslim law states the father as the natural guardian of the minor child. Still, mothers are given explicit custody of the minor until the son attains the age of seven, and the daughter reaches puberty.[45] Under the Muslim personal law, mothers get a preferential right over the custody of a minor, and she cannot be disqualified from exercising this right until she is disqualified.

1. Daughter

   Under Hanafi Law, Mothers are entitled to the custody of a minor daughter till she attains puberty.[46] Under Shia and Maliki laws, mothers are entitled to have the custody of the minor daughter till she gets married.[47]

2. Son

   Hanafi law entitles the mother to have the custody of a minor son till he is seven-year-old. Shia law allows it till the son is of two-year-old, and Maliki law allows it till the male child attains puberty.[48]
   
   The mother will retain custody even if she ceases to be the wife of her husband.[49] This preferential right of a mother can be withdrawn only in two circumstances.[50] First is when there is any fault with the mother's character. The second condition for disqualification is that she must have remarried another person after the dissolution of her current marriage.[51]
   
   

3. Custody of the minor in the absence of mother

   If the mother of the minor is not present, then the nearest female relations will have custody rights.[52] These relations include:[53]
   
   'Grandmother(maternal), Grandmother(paternal), Full sister, Uterine Sister, Consanguine Sister, Daughter of full sister, Daughter of uterine sister, Maternal aunts, Mother' father.'
   If all the above options are exhausted, then the father will have the custody rights of the minor.[54] In the absence of father following persons will have the custody rights:[55]
   
   'Paternal Grandfather(nearest), Full Brother, Consanguine brother, Full brother's son, Consanguine brother's son, Full paternal uncle, Consanguine paternal uncle, Full paternal uncle's son, Consanguine paternal uncle's son, Uterine brother, Uterine brother's son, Father's Uterine Brother, Maternal Uncle, Mother's Uterine Brother.'
   
   If the age or the time for which the mother holds the minor's custody ends, custody of the minor automatically gets transferred to his father.[56] If the mother denies leaving the custody of the child, it will be considered as wrongful confinement of the child.[57]

Christian Law And Parsi Law

1. Christian Law

   Custody, as per Christian law, is not dealt with under the provisions of any specific law. It is decided according to the provisions of Guardians and Wards Act, 1890 and Indian Divorce Act, 1869 applicable to all religions.
   
   Indian Divorce Act, 1869, gives the court powers to pass interim orders regarding the custody of the minor while the proceedings in a suit of separation are going on.[58] Under section 42 of the Act, courts can pass orders regarding the custody of the minor after the court has decided on the issue of separation.[59]
   
   Supreme court held that all orders passed by a court regarding the custody of the minor are temporary in nature are given as per the present circumstances of the case.[60] These orders regarding the custody of the minor may be changed if the court finds it in the best interest of the minor.[61]

2. Parsi Law

   In Parsi law, custody of the child is dealt with by section 41[62] and 43[63] of the Parsi Marriage and Divorce Act. In addition to the above Act, custody issues under Parsi law are also dealt with by the Guardians and Wards Act, 1890.[64] There is no distinctive law to deal with the issue of custody under Parsi law. This Act gives paramount consideration to the welfare of the child while deciding on the issue of custody. The welfare of the child supersedes the rights of parental rights to custody

Inter-Country Disputes

A. Nithya Anand Raghavan v. State of NCT Of Delhi[65]

It is the recent case that dealt with the issue of inter-country custody dispute of a minor child. In this case, the mother of the minor child, who had been granted British citizenship came to India with her minor child. After that, she filed a complaint against her husband in Crime Against Women Cell in New Delhi. As a counterblast, the respondent-husband filed a petition in High Court for Justice, Family Division, UK, for custody of the daughter and her return to the jurisdiction of the UK court.

India is not a signatory to the Hague Convention of 1980 on "Civil Aspects of International Child Abduction." The law in non-convention countries is that the courts while deciding on such a question must give paramount importance to the welfare of the child and reckon the order of the foreign court as a factor to be considered unless court decides to exercise summary jurisdiction.

Courts can conduct summary jurisdiction and return the minor to the jurisdiction of its native country if it is satisfied that it is not harmful to the minor. Summary jurisdiction can be exercised if the minor child is removed from his native country to a country where his native language is not spoken, or if he gets separated from the social customs to which he accustomed to, or if his native education gets disturbed by the foreign education system.

These are the few examples where summary enquiry can be made for all these circumstances psychologically affects the child. Further, while exercising the summary enquiry court must be satisfied that the court to which the child is removed is moved quickly and promptly so that there is no delay in the final decision.

Additionally, if the court is satisfied that the child develops deep roots in the country to which the child has been removed, it can initiate an elaborate enquiry to decide whether it will be in the best interest of the child to not to have him repatriated to the jurisdiction of his native country.

In either summary or elaborate enquiry what matters is that paramount importance should be given to the welfare of the child. The court disapproved of the paragraph in Surya Vadanan V. State of Tamil Nadu[66], where it was held that for initiating an elaborate enquiry where an order has already been passed by a foreign court, it must have special reasons to do so.

The essence of this judgement is that the principle of comity of court, order passed by a foreign court to bring back the minor child to its native jurisdiction, citizenship of parents and child and intimate connection with the issues cannot override the paramount importance that must be given while deciding on whether to repatriate or not repatriate the minor to his or her native country.

B. Lahari Sakhamuri v. Sobhan Kodali[67]

In this case, court, while endorsing the ruling in Nithya case (Supra), held that the courts must decide on the question of repatriating or not repatriating the minor by giving paramount consideration to the welfare of the child concerning the totality of facts and circumstances in each case. Comity of court, citizenship of child and parents, orders of a foreign court, and intimate contact should be reckoned as one of the factors while deciding in the best interests of the child.

Conflict Between Guardians And Wards Act, 1890 And Different Personal Laws

Guardians and wards Act, 1890, was passed by the legislature keeping in mind that various personal laws already exist to deal with such issues. This Act explicitly mentions that it would not contradict the provisions of different personal laws, but it will be in addition to those laws.[68]

This Act gives the right to appoint a guardian under personal laws.[69] Further, Section 17 of the Act provides for the appointment of a guardian under the personal law regulating the parties. Delhi HC rules that under the provisions of Section 6 of the Act, the personal laws of the parties must be taken into account when deciding on an application for custody. If the Court does not take this into account, it will act unlawfully and with material irregularity.[70]

The provisions of the Hindu Minority and Guardianship Act, 1956, should be read in addition to the Guardians and Wards Act, 1890, and synchronized with each other. Still, in the event of a sharp conflict between the two Laws, the latter Act will prevail over the former.[71]

Reforms In Child Custody Laws In India

Law Commission, in its 257th report, suggested some reforms to child custody laws in India. One of these reforms is concerned with the discriminatory position in the guardianship rights accorded to the mother and father.[72]

Under some Indian laws, the father's right to guardianship is considered to be superior to that of the mother. This position was changed in the Guardians and Wards Act, 1890 through an amendment[73] but it continues to be present in Hindu Minority and Guardianship Act, 1956.[74] Such a position creates anti-feminine prejudice and promotes a patriarchal outlook in society. Law commission suggested amending Hindu Minority and Guardianship Act, 1956 to make both mother and father equally entitled to the guardianship rights.[75]

Further, the Law Commission suggested some specific guidelines to be applied to determine the extent to which the welfare of the Minor principle can be used. In the absence of specific guidelines regarding the factors to be applied while determining the welfare of the minor, courts decide on the basis of their personal interpretation of the law without providing any info about their reasons for granting the custody.[76]

Conclusion
Under some personal laws, separate provisions are available to deal with the issues of child custody. Whereas, the Guardians and Wards Act, 1890 is applicable to minors of all castes and creeds. Courts usually tries to make a harmonized interpretation of the Act and the personal laws and apply the same to decide in the best interest of the minor.

In case of a clear-cut conflict between the two, the former supersedes the latter. Under Christian and Parsi law, no separate provisions are available for child custody issues. Such issues under these laws are usually dealt with by the Guardians and Wards Act, 1890.

Courts in India give welfare of the minor paramount importance while dealing with custody issues. The rights of the child are considered superior to the rights of parents. By using parens patria jurisdiction, courts can override any provision of the statutes and laws to decide in the best interest of the minor.[77]

Several legislative provisions also give preference to the minor's interest. Some reforms need to be made to the existing laws so as to make this principle clear-cut, leaving no scope for any ambiguity. Some guidelines should be brought down to establish the factors that must be taken into consideration while applying this principle. It will provide uniformity in cases related to child custody. Further, laws should be made free of gender bias. Both mother and father should be made natural guardians of under the Hindu Minority and Wards Act, 1956.

End-Notes:
[1] PARAS DIWAN, LAW OF ADOPTION, MINORITY GUARDIANSHIP AND CUSTODY 424 (3rd ed., 2000).
[2] Id., 425.
[3] K R RAMASWAMY IYENGAR, COMMENTARY ON THE GUARDIANS AND WARDS ACT, 1890 1 (2nd ed., 2010).
[4] DIWAN, supra note 1, 425.
[5] Id.
[6] Law commission report No.257 Reforms in Guardianship and Custody Laws in India PG 12.
[7] Id.
[8] Guardians and Wards Act, 1890, 12.
[9] Mohideen Ibrahim Nachi v. L. Mahomed Ibrahim Sahib, (1916) ILR 39 Mad 608.
[10] DIWAN, supra note 1, 516.
[11] Sheila B. Das v. P.R. Sugasree, (2003) 3 SCC 62.
[12] Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471.
[13] DIWAN, supra note 1, 251.
[14] Id.
[15] Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu, (1984) 3 SCC 698.
[16] Hindu Minority and Guardianship Act, 1956, 13.
[17] Hindu Minority and Guardianship Act, 1956, 13.
[18] Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.
[19] Jijabai v. Pathankan, AIR 1971 SC 315.
[20] Guardians and Wards Act, 1890, 17(2).
[21] Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318.
[22] IYENGAR, supra note 3, 159.
[23] Jitender Arora v. Sukriti Arora, (2017) 3 SCC 726.
[24] Wazir Ali And Anr. v. Ali Islam, 47 Ind Cas 833.
[25] Id.
[26] DIWAN, supra note 1, 563.
[27] Guardians and Wards Act, 1890, 17(2). DIWAN, supra note 542.
[28] Id.
[29] IYENGAR, supra note 3, 190.
[30] Islaman v. Mst. Maqbulan, AIR 1924 Oudh 126.
[31] Guardians and Wards Act, 1890, 17(3).
[32] DIWAN, supra note 1, 529.
[33] Id.
[34] Baldeo v. Dhanna Mal, AIR 1927 Nag, at 314.
[35] Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413.
[36] Bandi v. Jamme, AIR 1960 AP 516.
[37] Nil Ratan Kundu & Anr v. Abhijit Kundu, (2008) 9 SCC 413.
[38] Hindu Minority and Guardianship Act, 1956, �6(a).
[39] Sheokumar Ram Prasad Tiwari v. Siv Rani Bai, AIR 1966 MP 189.
[40] DIWAN, supra note 1, 251.
[41] Saraswathibai v. Sripad, (1941) 43 BOMLR 79.
[42] Bhola Nath v. Sharda Devi, AIR 1954 Pat 489.
[43] Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318.
[44] Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573.
[45] Law Commission of India, Reforms in Guardianship and Custody Laws in India, Report No.257, 8 (May 2015).
[46] Taslima Monsoor, Women's Rights Under Muslim Family Law With Particular Reference to Custody and Guardianship, (1997) 8 DULJ 49.
[47] Id.
[48] I MULLA, COMMENTARY ON MOHAMMEDAN LAW 415 (2006).
[49] Id., 420.
[50] Id.
[51] Id.
[52] MONSOOR, supra note 46.
[53] JAMAL J. NASIR, THE ISLAMIC LAW OF PERSONAL STATUS at 175 (second edition).
[54] MONSOOR, supra note 46.
[55] NASIR, supra note 53.
[56] Zebu v. Miraj Gul, PLD Pesh 77 (1952).
[57] Id.
[58] Indian Divorce Act, 1869, 41.
[59] Indian Divorce Act, 1869, 41.
[60] Rosy Jacob v. Jacob A. Chakramakk, 1973 AIR 2090.
[61] Id.
[62] The Parsi Marriage and Divorce Act, 1936, 41.
[63] The Parsi Marriage and Divorce Act, 1936, 43.
[64] Caesar Roy, Shared Parenting System vis--vis Custody of Child - Is India in Need of Legislation for Caring Children?, CNLU LJ (6) [2016-17] 65.
[65] Nithya Anand Raghavan v. State of NCT Of Delhi, (2017) 8 SCC 454.
[66] Surya Vadanan v. State of Tamil Nadu, (2015) 5 SCC 450.
[67] Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.
[68] Guardians and Wards Act, 1986, 6.
[69] DIWAN, supra note 1, 443.
[70] Akhtar Begum v. Jamshed Munir, AIR 1979 Delhi 67.
[71] Rafiq v. Bashiran, A.J.R. 1963 Raj. 239.
[72] Law Commission of India, Reforms in Guardianship and Custody Laws in India, Report No.257, 8 (May 2015).
[73] THE PERSONAL LAWS (AMENDMENT) ACT, 2010
[74] Hindu Minority and Guardianship Act, 1956, 6(A).
[75] Law Commission of India, Reforms in Guardianship and Custody Laws in India, Report No.257, 8 (May 2015).
[76] Asha Bajpai, Custody and Guardianship of Children in India, 39(2) FAMILY LAW QUARTERLY (2005).
[77] Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.

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Written By: Udit Prajapat

Authentication No: JL021244169220-30-720